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122 Yale L.J. F. 1 (2012-2013)

handle is hein.journals/yljfor122 and id is 1 raw text is: CATHERINE M. SHARKEY Preemption as a Judicial End-Run Around the Administrative Process? Federal agencies play a dominant role in administering federal statutory schemes. At the front lines, they are tasked with interpreting statutes, enacting regulations to implement federal programs, and enforcing federal directives. During the course of adjudication or rulemaking, federal agencies are sometimes called upon to determine whether state law conflicts with federal law. That conflict inquiry is at the heart of preemption disputes before state and federal courts. Private parties wield preemption - typically as a defense - to stave off the effects of a state law allegedly trumped by federal law under the Supremacy Clause. Courts are then called upon to decide the extent to which state law is inconsistent with federal law. Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges thus provide parallel proceedings to resolve disputes over whether state and federal law are simpatico or at war. Douglas v. Independent Living Center of Southern California, Inc.' provides an opportunity to reflect upon the relationship between these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of the existence of federal-state conflicts and how to resolve them- agencies or courts? In this Essay, I use Douglas to explore two questions: first, whether courts can act as prompters, pushing federal agencies to discharge their duty to weigh in on potential conflicts between federal and state law; and second, whether a synergistic relationship can exist between courts and agencies in making such conflict determinations. The Medicaid providers (doctors, hospitals, and pharmacists) in Douglas sued to enjoin provisions of California law that reduced the amount of 1. No. 09-958 (U.S. Feb. 22, 2012), http://www.supremecourt.gov/opinions/lpdf/o9-958.pdf (to be reported at 132 S. Ct. 1204). 1

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